McKANNAY v. McKANNAY. (Civ. 4930.) (District Court of Appeal, First District, Division 1, California. Sept. 19, 1924. Rehearing Denied Oct. 18, 1924. Hearing Denied by Supreme Court Nov. 17, 1924.) 1. Judgment 304-Error of law upon which decision or judgment rests can be remedied, after entry, only by granting new trial, or on appeal. 7. Trial 400 (1)-Order held void as chang- Appeal from Superior Court, City and Suit by Harry G. McKannay against Mary E. McKannay. From order altering findError in law upon which a decision or judgings made after entry of interlocutory judgment rests, cannot, after entry of judgment, be reviewed and rectified by trial court summent, defendant appeals. Reversed. marily, or on motion, but can be remedied only See, also, 230 P. 214. by granting a new trial, or on appeal. 2. Judgment 304-Findings held insufficient to support judgment, hence judgment constituted judicial error. Sawyer & Sawyer and Annette A. Adams, all of San Francisco, for appellant. Theodore Savage, of San Francisco, for respondent. Where use by trial judge of word "material" in findings (authorized by Code Civ. Proc. §§ KNIGHT, J. Action for divorce. The de632, 633), that all of material allegations of fendant Mary E. McKannay appeals from an subdivisions of designated paragraph of amend-order altering findings, made after the entry ed complaint were true, and that none of material allegations of designated paragraph of cross-complaint were true, made it impossible to determine from his decision which of numerous allegations of amended complaint and of cross-complaint court deemed material, findings for that reason were insufficient to support the judgment, and decision based on such findings constituted judicial error, which could be corrected only by granting new trial or on appeal, and not merely a clerical misprision which could be corrected summarily or on motion. 3. Judgment 23-Decision of trial court, when filed, is rendition of judgment which is a judicial act. Decision of court based on findings within Code Civ. Proc., §§ 632, 633, when filed, amounts to a rendition of a judgment, which is a judicial act. of an interlocutory judgment. The amend- of which related to the statute of limitations. The fourth separate defense charged matters 4. Courts 116(4)-Judicial act and record of one of the two minor children, the issue of thereof, distinguished. The record of a judicial act is purely ministerial, involving no element of judicial discretion as does the judicial act; hence in case of a mistake in the record of the judicial act, court has inherent power at any time to make record reflect the judicial act. 5. Trial 400(1)-Trial court's designation of judicial error as a clerical misprision did not affect his lack of power to correct such error summarily, or on motion. Where error committed by trial court was shown by face of the record to be a judicial one, fact that such court declared, in the order appealed from, that error sought to be corrected was clerical misprision, did not affect its lack of power to correct such error summarily, or on motion. 6. Trial 400(1)-That trial court committed judicial error through inadvertence did not authorize it summarily to correct error. That trial court committed judicial error through inadvertence did not authorize it summarily to correct such error. said marriage, and the circumstances of her The court in its decision, which contained "That all of the material allegations of plaintiff's amended complaint set forth in the following specifications of paragraph V thereof are true, namely: Specifications 1, 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 26, 27, 28, 29 and 34." The court then goes on to find that the plaintiff's first cause of action was not bar (230 P.) red by the statute of limitations, and, contin-, ourselves herein to its use in the two vital uing, finds: particulars above mentioned. "That none of the material allegations contained in the second further and separate defense of defendant in her said answer are true. Plaintiff did not voluntarily separate himself from the defendant on or about the 12th day of December, 1920, without cause or against the will of defendant. That none of the material allegations set forth in the further and separate defense of defendant to plaintiff's second count or cause of action are true. That none of the allegations set forth in the defendant's amendment to her answer to plaintiff's first cause of action are true. That none of the material allegations set forth in defendant's amendment to her answer to plaintiff's second count or cause of action are true. That none of the material allegations set forth in paragraph V of defendant's cross-complaint against plain tiff for divorce are true." Concluding, the court made findings regarding the custody of said children, their support and maintenance. [1] That a court of general jurisdiction has the right, regardless of lapse of time, to amend or correct clerical errors or misprisions in its records so that its records shall conform to and speak the truth, cannot be questioned. Freeman on Judgments, § 70; City and County v. Brown, 153 Cal. 644, 96 P. 281; Crim v. Kessing, 89 Cal. 478, 26 P. 1074, 23 Am. St. Rep. 491. The power of the court in this regard is frequently exercised where the clerk fails to correctly or fully set forth in the record the order or judgment rendered. Halpern v. Superior Court, 190 Cal. 384, 212 P. 916; Brush v. Pac. Elec. Ry. Co., 58 Cal. App. 501, 208 P. 997; Gulf Mail Steamship Co. v. W. A. Hammond Steamship Co. (Cal. App.) 227 P. 938, 940; Crawford v. Meadows, 55 Cal. App. 4, 203 P. 428; 14 Cal. Jur. 995, § 72. The rule of correction is also extended to cover cases where clerical error or misprision is committed by the court. 14 Cal. Jur. 995, § 72; Bemmerly V. Woodward, 124 Cal. 576, 57 P. 561; Fallon v. Brittan, 84 Cal. 511, 24 P. 381. [2-4] But it is equally well settled that judicial errors committed by the court in the rendition of its findings and judgments cannot be thus summarily corrected after the entry of the judgment. In other words, where the decision or judgment is wrong in law the error upon which the decision or The entry of an interlocutory decree followed in accordance with said decision and notice of the entry of said judgment was served upon defendant. Thereafter defendant served notice of intention to move for a new trial, but before said motion was ruled upon plaintiff served "notice of motion for order correcting mistakes, clerical misprisions and omissions in findings as filed so as to make the record conform to the actual facts and speak the truth." The particular | judgment rests cannot, after the entry of corrections sought to be made were to strike out the word "material" in the five different places in which it appeared in the findings. Plaintiff's motion came on for hearing the next day after notice thereof had been given | to defendant, and, over defendant's objections, was granted. The denial of defendant's motion for a new trial followed. It is asserted by defendant, in her brief, without denial by plaintiff, that said corrections were made by crossing out in ink upon the face of said findings the word "material" in each of the five places wherein it appeared. judgment, be reviewed and rectified by the court, summarily or on motion (23 Cyc. 866), but can be remedied only by granting a new trial or on appeal. O'Brien v. O'Brien, 124 Cal. 422, 57 P. 225; Egan v. Egan, 90 Cal. 21, 27 P. 22; First National Bank of Fresno v. Dusy, 110 Cal. 69, 42 P. 476; Byrne v. Hoag, 116 Cal. 1, 47 P. 775; Forrester v. Lawler, 14 Cal. App. 171, 111 P. 284; Mann v. Mann, 6 Cal. App. 610, 92 P. 740; Estate of Potter, 141 Cal. 424, 75 P. 850. We are convinced that the error sought to be corrected by the order appealed from here was not a clerical one, as stated in said order, but was clearly the entry of judgment, only by granting a new trial or on appeal. In the case of O'Brien v. O'Brien, supra, the findings were insufficient in law because the court failed to find upon the issue of ali Although the court doubtless intended to find upon all special defenses set forth in de-a judicial error that could be rectified, after fendant's answer, an analysis of the findings shows that it found upon the defenses relating to the statute of limitations and condonation, and upon only one of the many allegations of the fourth separate defense. The latter finding is of little, if any, value, how-mony. It was held on appeal that the error ever, and consequently all of the allegations of the fourth separate defense to the first cause of action which fill some four pages of the printed transcript are without findings. The result is that the word "material" was used vitally in the findings in only two particulars: First, wherein it was used concerning the allegations of cruelty in paragraph V of the amended complaint; and, secondly, wherein it was used concerning the allegations of desertion in paragraph V of the cross-complaint. We shall therefore confine was a judicial one that could not be corrected by an order nunc pro tunc, but only by motion for new trial or on appeal. In First National Bank of Fresno v. Dusy, supra, which was a foreclosure proceeding, the findings and decree were against law because the court omitted to provide therein for the disposition of the stock pledged as security for the debt. The error was held to be a judicial one, subject to correction only by new trial or on appeal. In Egan v. Egan, supra, the decree was invalid in law for the reason that it contained no adjudication of the proper-, act. They were, in themselves, the judicial "The decision of the court, referred to in sections 632 and 633 of the Code of Civil Procedure, when filed, amounts in law to a rendition of the judgment. San Joaquin, etc., Co. v. West, 99 Cal. 347. "The rendition of a judgment is a judicial act. Its entering upon the record is merely ministerial.'” First Natl. Bank of Fresno v. Dusy, supra. There is a plain distinction between the judicial act and the record of it, the latter being purely ministerial in its character and involving no element of judicial discretion, and hence in the latter case the court has the inherent power, at any time, to make its record speak the truth, that is, to have its records correctly reflect the judicial act. 14 Cal. Jur. 933, sec. 71. [5] The fact that the trial court declared, in the order appealed from, that the error sought to be corrected was a clerical misprision, does not help matters for the simple reason that the situation upon its face shows that the error was nothing of the sort. In Forrester v. Lawler, supra, it is said: "While the court has the inherent right and power at any time to cause its acts and proceed cannot, under the pretense of the form of an amendment of its record, thus correct or revise a judgment which it has in fact rendered." Kaufman v. Shain, 111 Cal. 16, 43 P. 393, 52 Am. St. Rep. 139. [6] Neither does the fact that the court may have committed a judicial error through inadvertence and oversight give it the right In this reto summarily correct such error. spect, counsel for respondent in their brief say: By virtue of sections 632 and 633 of the Code of Civil Procedure the court, in the case at bar, was called upon to render its decision in writing containing its findings of fact upon all controverted material allegations of fact set forth in the amended complaint and in the cross-complaint. This it attempted to do by filing "that all of the material allegations" of certain subdivisions of paragraph V of the amended complaint were true and that "none of the material allegations of paragraph V of the cross-complaint were true." (Emphasis ours.) The function of the court in thus passing upon the ques-ings to be correctly set forth in its records, it tions of fact manifestly involved the exercise of judicial consideration and discretion and the court's decisions thereon constituted purely judicial acts. There was nothing ministerial or clerical about it. There were, however, many separate allegations of fact contained in those subdivisions of paragraph V of the amended complaint, which cover about 14 pages of the printed transcript; and there were also several independent allegations of facts contained in paragraph V of the cross-complaint. The use of the word "material" in the findings made it impossible to determine, from the court decision, which of those numerous allegations of the amended complaint and of the cross-complaint the court deemed material. For that reason the findings were wholly insufficient in law to support the judgment. Turner v. Turner, 187 Cal. 632, 203 P. 109; Holt Manufacturing Co. v. Collins, 154 Cal. 265, 97 P. 516; Stampfli v. Stampfli, 53 Cal. App. 126, 199 P. 829; Musselman v. Musselman, 140 Cal. 197, 73 P. 824; Krug v. F. A. Lux Brewing Co., 129 Cal. 322, 61 P. 1125; Cassidy v. Cassidy, 63 Cal. 352. In other words, the decision as rendered was legally wrong, and being legally wrong, the judicial error responsible for the invalidation thereof could not be corrected, after the entry of judgment, summarily or on motion, but only by granting a new trial or on ap-law committed at the trial, which the defendant peal. It seems idle for respondent to try to justify the correction upon the ground that the error was a clerical one and to con tend that the court by making the order in question was merely exercising its power toward making its records speak the truth, in view of the fact that the findings, as already pointed out, did not purport to be, nor were "It is also fair to assume that if the learned judge had noticed this word in the proposed findings he would not have signed them, for the whole profession, and more especially the judgMfg. Co. v. Collins, 154 Cal. 265, 97 P. 516, es. are quite familiar with the case of Holt and similar cases." Conceding that statement to be true, the complete answer to it is found in Forrester v. Lawler, supra: "As said in Egan v. Egan, 90 Cal. 15, 27 P. 22: 'If it should be admitted that the court ought to have included the provisions of this stipulation in its decree, its failure to do so was an error resulting either from a misconception of the law applicable to the facts before it, or from a failure to give sufficient consideration to those facts. In either case it was an error of should have sought to remedy through her motion for a new trial.' So in the case at bar. If it be true that the court should in its rendition al, its failure so to do was an error, but whethof judgment have followed the order of dismisser due to fraud, inadvertence, want of sufficient consideration of the order, or other cause, it was nevertheless an error of law which could not be corrected by the summary order from (230 P.) See, also, Forquer v. Forquer, 19 Ill. 71, cited and approved in First National Bank of Fresno v. Dusy, supra, [7] Futhermore, we are of the opinion that the order appealed from is void for the additional reason that the plain effect thereof was to change and to enlarge upon the findings in such a manner as to vary the rights of the parties as they were fixed by the original decision. Hole v. Takekawa, 165 Cal. 372, 132 P. 445; Hawxhurst v. Rathgeb, 119 Cal. 531, 51 P. 846, 63 Am. St. Rep. 142. Knowlton v. Mackenzie, 110 Cal. 183, 42 P. 580; County of Los Angeles v Lankershim, 100 Cal. 525, 35 P. 153, 556; Pico v. Sepulveda, 66 Cal. 636, 5 P. 515. As heretofore stated, the inclusion of the word "material" in the findings rendered the decision of the court insufficient in law to support the judgment. If the order appealed from was not made for the very purpose of correcting the judicial error in said decision, the only other implication arising from the act of striking out said word is that the court, as an afterthought, changed its views concerning the materiality or the truth of those allegations which it had previously deemed immaterial, and again sought to exercise its Judicial power by making new and additional findings as to the materiality or truth of those allegations. The decision of the court was thereby modified and enlarged to the extent of curing a fatal defect therein. The consequence was that appellant's motion for a new trial was rendered valueless. In view of this situation it is manifest that respond ent's contention that said correction did not vary the rights of the parties is entirely without merit. The order appealed from is reversed. of third person that a thing should be done, inadmissible to show criminal syndicalism. Prior statement of a third person that a certain person who had testified against the I. W. W. in a number of cases should be put out of the way held inadmissible on prosecution for criminal syndicalism, by being a member of the I. W. W. 4. Criminal law 1186(4)-Error in admitting evidence held not ground for reversal, in view of other sufficient evidence. Erroneous admission of evidence on prosecution for criminal syndicalism, by being a member of the I. W. W., held under Const. art. 6, § of the organization being shown by other testi4%, not ground for reversal; criminal character mony with sufficient certainty and particularity to call for verdict of guilty. 5. Insurrection and sedition 2-Character of I. W. W., and not belief of members, criterion of their guilt of criminal syndicalism. That defendants do not themselves believe in violence does not relieve them of guilt of criminal syndicalism by belonging to the I. W. W., if its guilty character, and their knowledge thereof, be shown. 6. Insurrection and sedition 2-No other definition of sabotage than that in statute necessary on prosecution for criminal syndicalism. other definition of sabotage than that in the On prosecution for criminal syndicalism, no statute need be given; any other being im material. 7. Criminal law 800(1)—Insurrection and sedition 2-Refusal of instructions stating elements of criminal syndicalism held error. Refusal of instructions stating the elements We concur: TYLER, P. J.; ST. SURE, J. of the offense of criminal syndicalism, necessary PEOPLE v. STEWART et al. (Cr. 770.) (District Court of Appeal, Third District, California. Sept. 13, 1924. Rehearing Denied Oct. 10, 1924. Hearing Denied by Supreme Court Nov. 10, 1924.) 1. Depositions 36-Indictee's application must show, not merely state, materiality of testimony. to be found for a conviction, and defining "knowingly," held error. 8. Criminal law 1186(4)—Error in refusing instruction harmless in view of evidence. Error in refusing instructions defining elements of criminal syndicalism necessary to be found for conviction, and defining "knowingly," held under Const. art. 6, § 4%, not to call for reversal; the evidence calling for a verdict of guilty. Appeal from Superior Court, Sacramento County; John F. Pullen, Judge. H. B. Stewart and another were convicted of criminal syndicalism, and appeal. Affirmed. Under Pen. Code §§ 1349, 1352, 1354, as to taking deposition of a material witness for one under indictment, there is no abuse of discretion in denying order for commission; affidavit, accompanying application, merely stating the person's testimony is material, without setT. F. Allen, of Bakersfield, R. W. Henderting forth it or anything showing its materiality. son, of San Francisco, and L. B. Schling 2. Insurrection and sedition 2-1. W. W.'s heyde, of Modesto, for appellants. views on entering war and on home life inad- U. S. Webb, Atty. Gen., and J. Charles missible on prosecution for criminal syndl-Jones, Deputy Atty. Gen., for the People. calism. On prosecution for criminal syndicalism, by PLUMMER, J. The defendants, together being a member of the I. W. W., views of the with one C. J. Driscoll, were prosecuted un For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes der an indictment returned by the grand, E. List resides out of the state of California, jury of the county of Sacramento, charging to wit, in the city of Minneapolis, in the state the crime of criminal syndicalism, as follows, to wit: “The said H. B. Stewart, C. J. Driscoll, and Pete Wukusitch on the day of December, A. D. 1922, at the county of Sacramento, in the state of California, and before the finding of this indictment were and each of them was, then and there willfully, unlawfully, and feloniously and knowlingly a member of an organization, society, group, and assemblage of persons known and designated as "The Industrial Workers of the World,' sometimes known and referred to as the 'I. W. W.,' and sometimes known and referred to as 'One Big Union'; which said organization, society, group, and assemblage of persons was then and there organized and assembled to advocate, teach, and aid, and abet criminal syndicalism. * * Upon trial the defendant Driscoll was found not guilty and the appellants guilty. The appellants' motion for a new trial having been denied, an appeal was taken therefrom, and from the judgment of conviction to this court, and is now pending for consideration. of Minnesota, and affiant verily believes that the said Dr. Walter E. List will not be within the state of California before or during the trial of said action, and that the testimony of said Dr. Walter E. List is and will be material on behalf of the said defendants and without the said testimony the said defendants will be unable to fully and fairly present their defense up on the trial of said action." This application was denied, and the ruling of the court thereon is assigned as error. Section 1349 of the Penal Code provides, "When an issue of fact is joined upon an indictment or information, the defendant may have any material witness, residing out of the state, examined in his behalf, * and then provides the procedure to obtain such deposition. Section 1352 of the same Code specifies that the application must be made upon affidavit setting forth the nature of the offense charged, the state of the proceedings in the action, that an issue of fact has been joined, the name of the witness, and that his testimony is material to the defense of the action, and that the witness resides As reasons for a new trial five specifica-out of the state. Section 1354 of the same tions of error are assigned, to wit: "First. The trial court erred in denying defendants' application for a commission to take a deposition; "Second. The trial court erred in the reception and exclusion of evidence; "Third. The evidence is insufficient to support the verdict; "Fourth. The trial court erred in giving and refusing instructions to the jury; [1] It appears from the transcript that at a reasonable time before the date set for the trial that an application was made for the issuance of a deposition to take the testimony of a witness residing in the state of Minnesota. The affidavit in behalf of such application is as follows: “T. F. Allen, being first duly sworn, deposes and says: Code directs that if the court to whom the application is made is satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order must be made for a commission to take his testimony, etc. Basing their argument upon the case of People v. Lundquist, 84 Cal. 23, 24 P. 153, it is argued that the refusal of the trial court to order the issuance of a commission to take the testimony of Dr. Walter E. List, the witness referred to in the affidavit, was both erroneous and prejudicial. In the case of People v. Lundquist the Supreme Court held in substance: "The superior court has jurisdiction and is in duty bound to grant an order for a commission to take the depositions of witnesses out of the state, to be used in a criminal case, in behalf be elicited is material and important to the deof the defendant, when the evidence sought to fense, and the showing made contains all that the statute requires." "That he is attorney for the defendants in a certain action now pending in the superior court of the state of California, in and for the county of Sacramento, wherein the people of the state The affidavit in the instant case follows the of California is plaintiff and H. B. Stewart, Pete literal wording of the statute. No facts or Wukusitch, and C. L. Driscoll are defendants; circumstances are set forth from which the that said defendants are prosecuted in said action upon an indictment accusing said defendants of trial court could determine whether the exthe crime of felony, to wit, criminal syndical-amination of the witness referred to was ism; that the said defendants have, and each of them has, duly pleaded not guilty to the said indictment, and that the said action has been set for trial before the above entitled court for the 26th day of November, 1923; that an issue of fact has been joined, and issues of facts have been joined upon the said indictment and the said pleas; that Dr. Walter E. List is a material witness in behalf of said defendants in said action and for the presentation of their necessary to the attainment of justice, nor were any facts whatever stated in the affidavit other or further than the conclusion of the affiant that the testimony of the witness referred to was necessary or material. In the Lundquist Case, all the proposed testimony to be elicited from the witness to be examined was set forth in the affidavit. Its materiality and admissibility plainly appear. |